Escolar Documentos
Profissional Documentos
Cultura Documentos
June 5, 2014
PUBLISH
Elisabeth A. Shumaker
Clerk of Court
MICHAEL L. ZINNA,
Plaintiff - Appellant,
v.
No. 13-1143
Christopher P. Beall, Levine Sullivan Koch & Schulz, LLP, Denver, Colorado, for
Plaintiff-Appellant.
Patrick D. Tooley (Kevin M. Coates with him on the briefs), Dill, Dill, Carr,
Stonbraker & Hutchings, P.C., Denver, Colorado, for Defendant-Appellee.
I.
Introduction
In 2012, this court held that the district court abused its discretion when it
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II.
Background
The details of Zinnas underlying lawsuit against Appellee Congrove are
more fully set out in our prior opinion and are not relevant to the issues presented
in this appeal. 680 F.3d at 1237-39. In summary, after a jury awarded Zinna
$1791 as damages for a violation of his First Amendment rights, he sought
approximately $503,000 in attorneys fees. Id. at 1239-40. Applying the threefactor test set out in Justice OConnors concurrence in Farrar v. Hobby, 506
U.S. 103, 116-22 (1992), the district court concluded Zinnas success was merely
technical and awarded him a small fraction of the attorneys fees he sought. Id.;
see also Lippoldt v. Cole, 468 F.3d 1204, 1222-24 (10th Cir. 2006) (applying
Farrar factors to determine whether plaintiff achieved only technical success).
This court reversed. Id. at 1242. Applying the Farrar factors, we concluded
Zinnas success was not merely technical. Id. at 1239-42. Accordingly, we
remanded the matter to the district court and ordered the court to calculate a
lodestar and then adjust it upward or downward to account for the particularities
of the suit and its outcome. Id. (quotation omitted). In an order dated
approximately two months later, this court granted Zinnas request for appellate
attorneys fees and remanded that matter to the district court for a determination
of the amount.
On remand, the district court ignored this courts mandate as to trial fees,
reevaluated the Farrar factors, and concluded once again that Zinnas success
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was merely technical. It then refused to calculate a lodestar. Instead, the district
court determined Zinnas trial counsel should only be reimbursed for an amount
equal to seven hours work, at an hourly fee of $290, for each of the eight days of
trial. The district courts order, dated November 8, 2012, stated: ORDERED,
that the plaintiff Michael Zinna shall recover $16,240.00 for fees incurred in this
case. Because the determination of Zinnas appellant counsel fees must await
further proceedings, the judgment will not be altered until that is done. On
March 15, 2013, the district court entered an order explaining why it determined
$18,687.50 was a reasonable appellate attorneys fee for Zinnas appeal. On the
same day a judgment was entered awarding plaintiff Michael Zinna attorney fees
of $34,927.50 for legal services of trial and appellate counsel.
Zinna filed a notice of appeal on April 13, 2013, stating his intention to
appeal from the November 2012 order awarding trial fees and the March 2013
order awarding appellate fees. Acting sua sponte, this court ordered the parties to
brief the question of appellate jurisdiction. Specifically, the parties were directed
to file memorandum briefs addressing [w]hether Appellants notice of appeal,
filed on April 13, 2013, was timely as to the district courts November 8, 2012
award of attorneys fees. Thus, the jurisdictional question is now also before
this court.
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III.
Discussion
A.
Trial Fees
Because the only argument as to trial fees Zinna advances in this appeal is
that the district court failed to follow this courts mandate in Zinna v. Congrove,
680 F.3d 1236, 1242 (10th Cir. 2012), he could have filed a motion asking the
original panel to enforce its mandate. As part of our inherent powers, this court
has the authority to order compliance with our mandate. See City of Cleveland v.
Fed. Power Commn, 561 F.2d 344, 346 (D.C. Cir. 1977) (The decision of a
federal appellate court establishes the law binding further action in the litigation
by another body subject to its authority. The latter is without power to do
anything which is contrary to either the letter or spirit of the mandate construed in
the light of the opinion of the court deciding the case . . . . (quotation,
alternation, and footnote omitted)). Our prior opinion made clear that Zinna
achieved more than a technical victory at trial. Thus, as we conclude, infra, the
district court violated our mandate by reevaluating the Farrar factors and
determining trial fees without first calculating a lodestar.
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his notice of appeal was filed within thirty days of that judgment. If the
November order is the final appealable order, his appeal of the trial fee award is
untimely. 2
An order is final if it contains a complete act of adjudication and
evidences the district courts intention that it is the courts final act in the matter.
United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 234 (1958); United
States v. Evans, 365 F.2d 95, 97 (10th Cir. 1966) ([I]n determining whether a
judicial act is a final judgment, this court puts importance upon the intention of
the judge.); see also Century 21 Real Estate Corp. v. Century 21 Real Estate,
Inc., 929 F.2d 827, 830 (1st Cir. 1991) (holding order awarding attorneys fees
was not final because order did not set the amount). Congrove argues Zinna was
required to file his notice of appeal within thirty days of the November order
because that order unambiguously and conclusively settled the issue of trial fees.
Zinna does not dispute that point but argues the matter before the district court on
remand involved both trial and appellate fees. Thus, he argues, the unitary issue
of attorneys fees was not conclusively settled until the district court awarded
both trial and appellate fees on March 15, 2013.
We agree with Zinna that, under the unique circumstances of this case, the
final appealable order was not entered until March 2013. When attorneys fees
are recoverable by a prevailing party, issues surrounding those fees are collateral
to and separate from the merits of the underlying suit. White v. N. H. Dept of
Empt Sec., 455 U.S. 445, 451-52 (1982). When an appeal is taken from a
decision on trial fees, however, the issue of appellate fees related to that appeal is
not itself a separate matter collateral to the issue of trial fees. Instead, the matter
is properly treated as a singular appeal involving the determination of both trial
and appellate fees.
The sole issue raised in Zinnas first appeal was the question of fees for
trial counsel, a matter collateral to the merits of Zinnas First Amendment claims.
Zinna prevailed in that appeal, the issue of trial fees was remanded to the district
court, and he was awarded appellate fees with the amount to be determined by the
district court. Thus Zinnas first appeal resulted in this court instructing the
district court to calculate both trial and appellate attorneys fees on remand.
Although that instruction was contained in two separate orders, the July 25, 2012
order awarding appellate fees was a supplement to the mandate originally issued
by this court on June 27, 2012, and was docketed as such. Mandates from single
appeals are not separable and, thus, the mandate in Zinnas first appeal
encompassed both trial and appellate fees. The issue of attorneys fees related to
Zinnas lawsuit was not fully and finally adjudicated until March 15, 2013, when
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the district court satisfied our singular mandate by completing the calculation of
all the fees to which Zinna was entitled. See S.L. ex rel. Loof v. Upland Unified
Sch. Dist., Nos. 12-55715, -56796, 2014 WL 1303638, at *5 (9th Cir. April 2,
2014) ([A] disposition is final if it contains a . . . full adjudication of the issues
at bar, and clearly evidences the judges intention that it be the courts final act in
the matter. (quotation omitted)). Because Zinnas notice of appeal was filed
within thirty days from entry of that judgment, this court has jurisdiction over the
issue of both trial and appellate fees.
Having concluded we have jurisdiction over the trial fee issue, we have no
hesitation further concluding the district court acted in contravention of the law of
the case doctrine when it determined Zinna was entitled to trial attorneys fees of
$16,240.00. Under the law of the case doctrine, once a court decides an issue,
the same issue may not be relitigated in subsequent proceedings in the same
case. Ute Indian Tribe of the Uintah & Ouray Reservation v. Utah, 114 F.3d
1513, 1520 (10th Cir. 1997). An important corollary of the doctrine, known as
the mandate rule, provides that a district court must comply strictly with the
mandate rendered by the reviewing court. Id. at 1520-21 (quotation omitted). In
Zinnas first appeal, this court concluded his victory was not merely technical.
Zinna, 680 F.3d at 1242. On remand, however, the district court reached the
contrary conclusion after conducting its own analysis of the Farrar factors. The
court then premised its award of trial fees on its conclusion only a technical
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violation of the First Amendment was proven by Zinna at trial, failing to first
calculate a lodestar as required by our mandate.
[W]hen a case is appealed and remanded, the decision of the appellate
court establishes the law of the case and ordinarily will be followed by both the
trial court on remand and the appellate court in any subsequent appeal.
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir. 1995). Congrove
concedes the district courts fee award must be reversed unless an exception to
the law of the case doctrine applies. She argues this court has the power to ignore
the prior panels opinion because it was clearly erroneous and would work a
manifest injustice. United States v. Alvarez, 142 F.3d 1243, 1247 (10th Cir.
1998) (setting out three circumstances in which this court will not apply the law
of the case doctrine). That exception, however, is exceedingly narrow and
Congrove has failed to cite any case from this court in which it was invoked to set
aside the explicit and fully reasoned decision of an earlier appeal. See id.
([T]his panel is not an en banc panel and, thus, is not in the business of
overturning prior panels decisions.).
The district courts analysis of the trial fee issue on remand contravened the
law of the case doctrine and the mandate rule. Accordingly, the court abused its
discretion when it awarded Zinna trial attorneys fees of $16,240.00.
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B.
Appellate Fees
Costs
In its initial fee award dated September 24, 2010, the district court ordered
the judgment entered on December 10, 2009, to be increased by costs of
$9,464.51. Neither party appealed this cost award. Although this court vacated
the district courts fee order in the prior appeal, it did not disturb the cost award
and the district court has, likewise, never eliminated those costs from the
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Conclusion
We affirm the district courts judgment insofar as it awards Zinna
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